This action arises out of Respondent's representation of Cloud County Development
Corporation (CloudCorp), a for-profit, economic development corporation. CloudCorp had been
involved in negotiations with Beldon Blosser, who had hoped to develop a portion of land he
owned in Cloud County, Kansas. Blosser had secured CloudCorp's services, but disagreements
arose between Blosser and CloudCorp regarding funding for the land's development, and they
parted ways.

At about the same time, the City of Concordia (City) decided to construct a dam and
reservoir. The City approached Blosser and sought to purchase a portion of his land for the dam
and reservoir. The City and Blosser were unable to reach an agreement regarding the value of the
land. City officials made it clear to Blosser that the City would seek condemnation of the land if
necessary.

David Swenson, an attorney with Swenson, Brewer & Long, represented Blosser. In
order
to obtain information that CloudCorp and the City had acquired regarding the value of Blosser's
land, Swenson and Blosser decided to propound a Kansas Open Records Act (KORA) request to
CloudCorp. On February 13, 2004, Swenson prepared two open records requests for
information–one directed to the City and one directed to CloudCorp.

Dana Brewer, Swenson's law partner, was a member of the Board of Directors of
CloudCorp and served as CloudCorp's legal counsel. Swenson gave a copy of the requests to
Brewer. The requests were then served on the afternoon of Friday, February 13, 2004. On
February 14, Swenson left for a 10-day vacation.

After CloudCorp received the request, Brewer discussed the matter with Kirk Lowell,
CloudCorp's executive director. Brewer informed Lowell that, because Brewer's law partner had
sent the request, Brewer could not advise CloudCorp on its response. CloudCorp then retained
Respondent to assist it on that matter.

On February 18, 2004, Respondent wrote a letter to Swenson. Respondent admits
authoring and publishing this letter, although it was signed by his partner, Scott R. Condray, who
ultimately served as Respondent's counsel early in this disciplinary proceeding. The letter stated
in pertinent part:

"Swenson, Brewer & Long Chartered Law Office (Firm) has a long history of
representing CloudCorp especially since the early 1990s. Over the years the Firm has provided
legal services to CloudCorp both for fee and pro bono . . . .

. . . .

"Mr. David E. Swenson is a member of the Firm. The very unprofessional actions
toward
CloudCorp by Mr. Swenson and his client on February 13, 2004 [have] put the Firm and Mr.
Brewer in a very precarious environment in which the Firm serves its clients.

. . . .

"CloudCorp has been trying to reach Mr. Swenson through the Firm since Friday
the
13th concerning this matter. However it appears to CloudCorp that Mr. Swenson conveniently
left
Concordia . . . after serving CloudCorp with the public information request while CloudCorp's
Executive Director was at a Rotary Luncheon meeting.

"CloudCorp is convinced that inappropriate professional behavior unconfronted
never
changes.

. . . .

"CloudCorp has willfully provided an environment of public, operational and
confidential information to the Firm in which Mr. Swenson and his client, both having an
unfavorable relationship to CloudCorp, could 'sneak a peak' at CloudCorp information and use
this information to take adverse action, at the direction of the Firm's other client, toward
CloudCorp.

"Because of the above stated items, you are hereby put on notice that this Request
is
inappropriate as you have a conflict of interest in making this Request . . . ."

Respondent's letter then recited the full text and comments to KRPC 1.7 (2006 Kan. Ct.
R. Annot. 411) and KRPC 1.10 (2006 Kan. Ct. R. Annot. 423). The letter closed with: "Please
advise that you are withdrawing both your Requests due to the conflict of interest."

Respondent sent a copy of the letter to the City Manager, the City Attorney, the City
Clerk and Public Information Officer, and five City Commissioners. This dissemination of the
letter led to certain of Swenson's clients becoming aware of its content. When the letter arrived at
Swenson's office, he was still out of town. He did not return until February 24, 2004, and became
aware that CloudCorp and Respondent believed he had a conflict in representing Blosser the
following day. Swenson then told Blosser that Blosser would need to find another attorney to
represent him regarding the records requests.

On February 27, 2004, Respondent wrote to Swenson again, stating:

"Inasmuch as you have not favored this office with a reply to our missive of
February 18,
2004, I have been directed to seek closure herein or my client will be required to pursue
additional
remedies, both civil (malpractice) and administrative (Disciplinary Administrator's Office.)

"My client, also your firm's client, is extremely upset that you have not responded
to
CloudCorp's repeated verbal and written overtures to resolve this matter. It appears that you do
not
professionally respect CloudCorp as a client of your firm. Your failure or refusal to return Mr.
Lowell's phone calls since February 13, 2004, resulted in moving this matter from something that
could have been resolved privately in your respective offices into the public domain and into a
much more serious and public review of the legal and ethical propriety of your request.

. . . .

"In addition, your actions have jeopardized the valued professional relationship
and
friendship between a member of your firm, Dana Brewer, Esquire, and his client CloudCorp.
However, my client is emphatic that you will not be allowed to use
CloudCorp's relationship with
Dana Brewer to extort and continue this conflict of interest while presenting a clear and present
danger to CloudCorp's community economic development efforts. CloudCorp will continue to
honor the professional relationship with your firm, as well as the personal relationship between
Dana Brewer and Kirk Lowell.

"Because of your reckless acts, a great deal of unnecessary strain has been created
within
CloudCorp, between CloudCorp and your firm, and between numerous individuals therein, who
had close personal and professional relationships. . . .

"Therefore I have been instructed by our mutual client to insist that you
immediately
withdraw and retract your Request for Public Information of [February 13, 2004] and notify this
office as such in writing. IMMEDIATELY HEREIN ABOVE, MEANS UPON
RECEIPT OF
THIS LETTER BY YOUR FIRM.

"Finally, we demand that you cease and desist from representing the interests of
any
other clients of your firm whose interests may be in conflict with CloudCorp.

"Your failure to promptly resolve this matter as indicated herein will result in
CloudCorp
taking the actions set forth herein above against you, Mr. David Swenson, Attorney at Law."

On March 1, 2004, Swenson spoke to Respondent by phone. During the telephone
conversation, Swenson orally withdrew the open records request. (Since that time, Swenson has
taken no further action on the matter.) According to Respondent, Swenson also offered to
self-report his conflict of interest to the Disciplinary Administrator. Swenson denies doing so.

On March 2, 2004, Swenson responded in writing to Respondent's two letters. Swenson
also filed a complaint with the Disciplinary Administrator about Respondent's conduct. A week
later, Respondent reported Swenson to the Disciplinary Administrator.

On May 17, 2006, the Disciplinary Administrator filed a formal complaint against
Respondent, alleging violations of KRPC 4.4, KRPC 8.3, and KRPC 8.4(d).

A hearing was held on June 29, 2006, before Presiding Officer Ruth E. Graham, Jo Ann
Butaud, and Randall K. Rathbun. On August 28, 2006, the panel issued its final hearing report,
which contained findings of fact substantially similar to those set out in the summary above.

The panel dismissed the KRPC 8.3 claim, because Respondent had eventually reported
Swenson to the Disciplinary Administrator. After an investigation, the Disciplinary
Administrator's office determined that Swenson did not have a conflict of interest when he
propounded the open records request to CloudCorp on Blosser's behalf, because CloudCorp's
interests and Blosser's interests were not materially adverse.

The hearing panel concluded that Respondent violated KRPC 4.4, which provides: "In
representing a client, a lawyer shall not use means that have no substantial purpose other than to
embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the
legal rights of such a person." In the panel's view, "when the Respondent published the February
18, 2004, letter to various members of the Concordia community, he had no valid substantial
legal purpose, other than to embarrass Mr. Swenson."

The panel detected irony in Respondent's assertion in his February 27, 2004, letter that
Swenson's failure to respond to the February 18 letter forced Respondent to "mov[e] this matter
from something that could have been resolved privately in [their] respective offices into the
public domain." In fact, the panel noted, it was Respondent who had taken the matter to "the
public domain" by delivering the February 18 letter to various community members. Moreover,
the panel members believed that Respondent had failed to give Swenson an adequate opportunity
to respond.

The panel also concluded that Respondent violated KRPC 8.4(d), which states: "It is
professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the
administration of justice." According to the panel, Respondent engaged in conduct prejudicial to
the administration of justice when he published the February 18 letter to various members of the
community. In doing so, he interfered with Blosser's open records request; the panel stated
explicitly that "[t]he prosecution of the open records request was halted by Respondent's antics."

Regarding its recommended discipline, the panel considered the following factors
pursuant to Standard 3 from the American Bar Association's Standards for Imposing Lawyer
Sanctions (1991) (Standards):

"Duty Violated. The Respondent violated his duty to the legal system
and the legal
profession to refrain from abusing the process.

"Mental State. The Respondent knowingly violated his duty.

"Injury. As a result of the Respondent's misconduct, the Respondent
caused actual harm.
Mr. Swenson testified that at least one client terminated his services based upon the letter written
and published by the Respondent. As a result, the Respondent's misconduct caused Mr. Swenson
actual harm."

The panel found the following aggravating factors present:

"Prior Disciplinary Offenses. The Respondent has been previously
disciplined on three
occasions.

"On September 10, 1991, a Hearing Panel of the Kansas Board for Discipline of
Attorneys conducted a hearing regarding allegations that the Respondent engaged in misconduct.
The Hearing Panel concluded that the Respondent violated DR7-102(B)(1) [failure to reveal
fraud
perpetrated by client to court and affected parties] and DR1-102(A)(5) [conduct prejudicial to the
administration of justice]. . . .

"On June 10, 1997, the Disciplinary Administrator informally admonished the
Respondent for having violated MRPC 1.11 [representing a private client in connection with a
matter in which the lawyer participated personally and substantially as a public officer].

"On January 28, 1998, a Hearing Panel of the Kansas Board for Discipline of
Attorneys
conducted a hearing regarding allegations that the Respondent engaged in misconduct. The
Hearing Panel concluded that the Respondent violated MRPC 8.4(b) [committing a criminal act
reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other
respects] and MRPC 8.4(d) [conduct adversely reflecting on fitness to practice law].

"A Pattern of Misconduct. By forwarding a copy of the letter to eight
members of the
Concordia community, the Respondent engaged in a pattern of misconduct.

"Refusal to Acknowledge Wrongful Nature of Conduct. Throughout the
disciplinary
process, the Respondent refused to acknowledge the wrongful nature of his conduct.

"Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the
Respondent to practice law in 1981. At the time Respondent engaged in misconduct, the
Respondent had been practicing law for more than twenty years. Accordingly, the Hearing Panel
concludes that the Respondent had substantial experience in the practice of law at the time he
engaged in misconduct."

The panel also considered the following mitigating factor:

"Remoteness of Prior Offenses. The discipline imposed in 1991, 1997,
and 1998, is
remote in time and in character to the misconduct in this case."

The panel noted that none of the standards for imposing lawyer sanctions fit Respondent's
situation precisely. The Deputy Disciplinary Administrator recommended published censure.
Counsel for Respondent argued that Respondent had committed no violation and recommended
that the panel dismiss the complaint.

Based on its findings of fact, conclusions of law, and the aggravating and mitigating
factors it considered, the panel unanimously recommended that Respondent be censured by the
Kansas Supreme Court and that the censure be published in the Kansas Reports. The panel
assessed costs against Respondent.

Respondent's Exceptions

Respondent generally accepts the facts as set out in the final hearing report, although he
urges the court to clarify certain characteristics of his client, CloudCorp. The corporation was
created by a lawyer from Swenson, Brewer & Long; that firm had been CloudCorp's
longtime
counsel. Respondent asserts that CloudCorp, although set up as a nonpublic entity, was
concerned about being characterized as a public entity. It received one-third of its funding from
the City, and a City Commission member sat on CloudCorp's board. According to Respondent,
the company desired to avoid the perception that its "alliances with local government funding
might make [it a] quasi-public entity subject to open records requests." Respondent and Lowell
thus perceived the open records requests from Swenson as threatening to the nonpublic nature of
the company, particularly when they were directed at CloudCorp by a lawyer in the firm that had
assisted in setting up the company. Respondent asserts that the requests on behalf of Blosser also
conflicted with CloudCorp's interests because they sought disclosure of confidential information.

Respondent also emphasizes that the rules governing KORA requests give a public entity
only 72 hours to respond before penalties begin to accrue under K.S.A. 45-215 et
seq.
Respondent argues that the February 18 letter was an attempt to protect his client and to alert all
affected parties that the request was invalid.

Respondent also takes issue with the panel's characterization of his February 18 letter as
"vitriolic," asserting that, contrary to the panel's statement that the letter accused Swenson of
engaging in unethical conduct: "[t]he word 'unethical' is not used anywhere in Respondent's
letter." However, regardless of the exact language in the letter, Respondent consistently testified
that, when he wrote it, he believed Swenson had acted unethically in propounding the open
records request to CloudCorp.

Analysis

In attorney disciplinary proceedings, this court considers the evidence, the findings of the
disciplinary panel, and the arguments of the parties, and determines whether violations of KRPC
exist. If they do, the court considers the discipline to be imposed. Any attorney misconduct must
be established by substantial, clear, convincing, and satisfactory evidence. In re
Lober, 276 Kan.
633, 636, 78 P.3d 442 (2003).

We view the findings of fact, conclusions of law, and recommendations made by the
disciplinary panel as advisory only, but we give the final hearing report the same dignity as a
special verdict by a jury or the findings of a trial court. Thus the disciplinary panel's report will
be adopted where amply sustained by the evidence, but not where it is against the clear weight of
the evidence. When the panel's findings relate to matters about which there was conflicting
testimony, this court recognizes that the panel, as the trier of fact, had the opportunity to observe
the witnesses and evaluate their demeanor. Therefore, we do not reweigh the evidence or pass on
credibility of witnesses. Lober, 276 Kan. at 636-37. We merely examine any
disputed findings of
fact and determine whether clear and convincing evidence supports the panel's findings. In
re
Kellogg, 269 Kan. 143, 153, 4 P.3d 594 (2000). If so, the findings will stand. We need not
restate
the entire record to show substantial competent evidence to support the panel's findings.
Kellogg,
269 Kan. at 153.

Preliminary Arguments

Respondent first argues that, based on the facts known to him, he was justified in his
belief that Swenson had a conflict of interest. This belief was evidenced not only by the content
of his letters but also by his March 9, 2004, report of Swenson to the Disciplinary Administrator.
The Administrator, after an investigation, concluded there was, in fact, no conflict. Although we
need not accept the Administrator's finding that there was no conflict, we do not consider
Respondent's argument to be material to the disposition of his disciplinary case. At issue in this
proceeding is not whether Respondent was justified in believing a conflict existed, but whether
his conduct, based on that belief, violated the Kansas Rules of Professional Conduct. Given the
irrelevance of Respondent's subjective or objective view of the conflict issue, we need not
address his assertion that his right to due process was infringed when the hearing panel limited
testimony on this topic.

KRPC 4.4

KRPC 4.4 (2006 Kan. Ct. R. Annot. 488) provides that, "[i]n representing a client, a
lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or
burden a third person, or use methods of obtaining evidence that violate the legal rights of such a
person."

Respondent urges us to reject the panel's conclusion that he violated this rule by
publishing his February 18, 2004, letter to various City employees. He asserts that (1) the panel
applied the wrong standard in evaluating the alleged violation; (2) the rule is limited in scope to
protecting the rights of lay persons, not fellow lawyers; and (3) there was a substantial purpose
for publishing the letter other than to embarrass Swenson. We address these arguments in this
order.

Applicable Standard

Respondent insists that the standard to be applied under the rule to determine whether
there was a "substantial purpose other than to embarrass, delay, or burden" Swenson should be a
purely subjective one, evaluating only Respondent's personal view of the situation at hand. When
we apply this standard, he further argues, we are required to resolve all facts and inferences in
Respondent's favor. Here, when the panel inquired about Respondent's motive, he testified his
action was a "legal check" designed to eliminate the KORA request and get Swenson to change
his position.

Respondent cites a District of Columbia case in support of a subjective standard,
Shepherd v. American Broadcasting Companies, Inc., 62 F.3d 1469, 1483 (D.C. Cir.
1995). It,
according to him, stands for the proposition that, when evaluating a claim of misconduct under
such a "respect for third-parties" rule, the question of "whether attorney behavior is
unprofessional depends . . . on the attorney's perspective, that is, on whether . . . the
attorney has
'no substantial purpose other than to embarrass, delay, or burden a third person.'" (Emphasis
added.) Shepherd, 62 F.3d at 1483.

Shepherd cannot bear the burden Respondent would have us place upon it. In
that case,
the trial court sanctioned a defendant company because its outside attorney had "harassed a
witness." In reaching this conclusion, the court relied solely on the witness' testimony that she
felt threatened and "cornered." 62 F.3d at 1483-84. On review, the Circuit Court of Appeals for
the District of Columbia reversed the sanction because the attorney testified that it was his style
to try to talk to witnesses face-to-face and that, when the witness said she did not want to talk, the
attorney pursued her no further. The appellate court's analysis, contrary to Respondent's reading
of it, implies that the standard for evaluating misconduct should be an objective one,
i.e., the
reasonableness of the attorney's actions under the peculiar facts and circumstances of the case,
rather than a subjective one based solely on either the attorney's perspective or the third party's
perspective.

The Rules of Professional Conduct are just that: general standards of conduct and practice
required of those admitted to the bar in Kansas. See Rule 226 (2006 Kan. Ct. R. Annot. 351). A
lawyer cannot escape responsibility for a violation based on his or her naked assertion that, in
fact, the "substantial purpose" of conduct was not to "embarrass, delay, or burden" when an
objective evaluation of the conduct would lead a reasonable person to conclude otherwise. We
believe the panel evaluated Respondent's conduct in the unique circumstances of this case
appropriately.

Scope of KRPC 4.4

Respondent's next argument–that KRPC 4.4's protections apply only to the rights
of lay
persons and not fellow lawyers–is without merit. Chapter 4 of the KRPC's specifically
applies to
"Transactions with Persons Other than Clients." "Persons other than Clients" obviously can
include fellow lawyers, even when they are serving as counsel for another or an opposing party in
a legal interaction, transaction, or litigation. Moreover, although KRPC 4.4 is often applied to
protect nonclient witnesses and unrepresented or opposing parties, see comment to KRPC 4.4,
the rule also has been applied by this court in the attorney-to-attorney context. See In re
Landrith,
280 Kan. 619, 635, 124 P.3d 467 (2005) (attorney disciplined for, inter alia, KRPC
4.4
violations based on abuses directed at opposing counsel, other attorneys, judges, judicial staff);
In re Pyle, 278 Kan. 230, 240, 91 P.3d 1222 (2004) (Pyle I) (attorney
disciplined for KRPC 4.4
violation based on letter to opposing counsel). As the Disciplinary Administrator notes here,
other jurisdictions also have applied this rule to control conduct aimed at opposing counsel. See
In re Estiverne, 741 So. 2d 649, 653 (La. 1999) (offensive letter to judge, physical
threat to
opposing counsel with firearm warrants discipline under [Rule 4.4]); In re Belue,
232 Mont. 365,
369-70, 376, 766 P.2d 206 (1988) (physical attack on opposing counsel, repeated filing of
frivolous ethics complaints against opposing counsel warrants discipline under [Rule 4.4]).
Although we recognize that it is prudent to tread carefully when regulating the amount of zeal
exhibited in representation of a Kansas attorney's client, we again believe the panel struck an
appropriate balance in this case.

Substantial Purpose Other than Embarrassment

The essence of Respondent's argument on this point is that, while his letter was
"admittedly, sharply-worded," it was not, as the panel characterized it, "vitriolic." Further, in his
view, the letter had a "substantial purpose" to "get Swenson's attention and [persuade him to]
recall the KORA request affecting CloudCorp." Respondent stresses he sent the February 18
letter and published it to City officials at the express direction of his client. We note that, when
Respondent was asked at the panel hearing about his objective for the two letters, he said, "I
didn't have any objective. The client's objective was the paramount consideration. He wanted a
simple written withdrawal of the open records request."

This effort to shift our focus from Respondent's objective in adopting and pursuing a
particular method to Respondent's client's ultimate legal objective does not insulate Respondent
from a conclusion that he violated KRPC 4.4. The advocacy to which a client and the client's
legal position is entitled cannot enable or justify an attorney in violating ethical restraints to
which he or she is subject. "The client made me do it" is not a valid defense. There are times
when an attorney's only ethical duty is to tell a client "no" or, perhaps, "your legal objective is
valid, but I am ethically bound to pursue it through a different means."

Here, it appears that Respondent and his client had legitimate objectives. They wanted to
inform Swenson that they did not believe CloudCorp, as a private entity, was subject to KORA,
and they wanted to tell Swenson that they believed his representation of Blosser on the KORA
request was a conflict of interest. However, there is clear and convincing evidence supporting the
panel's ultimate conclusion that the means Respondent used to accomplish these
ends served no
substantial purpose other than to embarrass Swenson. See In re Royer, 276 Kan. at
649
(existence of legitimate objective does not preclude application of rule where means served no
substantial purpose other than to burden).

At the hearing, CloudCorp's Executive Director Lowell referred to the February 18 letter
as a "bomb." Respondent dropped this bomb by publishing the letter to City officials, accusing
Swenson of committing serious violations of the Kansas Rules of Professional Conduct; of
"conveniently" leaving town; of "willfully" creating an environment in which Swenson could
"sneak a peek" at CloudCorp files in his law firm to facilitate action adverse to CloudCorp in the
interest of Blosser. Respondent later accused Swenson of "fail[ing] or refus[ing]" to resolve the
matter and threatened civil and disciplinary action against Swenson if Swenson did not
immediately withdraw the KORA requests. Swenson testified that, in the 33 years of his law
practice, he had "never seen a letter like this," that "accused another lawyer - and without any real
basis for doing so - of things like, you know, being a spy, and doing things that I felt they had
absolutely no basis for making those allegations. And just deriding me professionally and
personally. Yes, I was – I was insulted. . . . I felt like I had been slandered."

Respondent argues that the panel created "a new actionable element without prior notice
of the rule change" by basing its conclusion on the publication of the letter. We
disagree. The
rule clearly proscribes conduct, and the dissemination or publication of a letter designed to
embarrass is a "means" explicitly contemplated by the rule. The panel's decision that
Respondent's conduct in publishing the letter, as distinct from the content of the letter alone,
violated KRPC 4.4 is legally sound.

In re Pyle is instructive on this point. In that case, this court concluded that E.
Thomas
Pyle III'saction of sending a letter threatening to report opposing counsel to the
Disciplinary
Administrator if opposing counsel did not settle an underlying lawsuit, constituted use of his
belief in a potential ethical violation "as a tool to gain a better bargaining position in the lawsuit."
We stated that, in such circumstances, "there was clear and convincing evidence that Pyle sent a
letter that had 'no substantial purpose other than to embarrass, delay, or burden" opposing
counsel in violation of KRPC 4.4. In re Pyle, 278 Kan. at 241.

Given all of the above, we adopt the hearing panel's conclusion that, by
publishing the
February 18 letter, Respondent served no substantial purpose other than to embarrass Swenson.
This conclusion is supported by the clear weight of the evidence in the record.

KRPC 8.4(d)

KRPC 8.4(d) states: "It is professional misconduct for a lawyer to . . . engage in conduct
that is prejudicial to the administration of justice."

Respondent argues that the hearing panel erred by concluding that he engaged in conduct
prejudicial to the administration of justice when he published the February 18 letter to various
members of the community. Specifically, the panel decided that Respondent interfered with
Blosser's effort to obtain public documents: "[R]espondent's antics" "halted . . . [t]he prosecution
of the open records request."

Respondent challenges this decision, arguing that Rule 8.4(d) cannot be violated without
violation of another rule and that, even if it can be violated in isolation, the Disciplinary
Administrator did not meet the burden of proof.

First, we need not fully discuss Respondent's argument that a violation of the general
misconduct rules in KRPC 8.1 through KRPC 8.4 must accompany violation of another
disciplinary rule. As discussed above, we agree with the panel that Respondent violated KRPC
4.4. We pause only to note that our prior cases have required no predicate violation of another
rule to support a violation of KRPC 8.1 through 8.4. See In re Gooding, 260 Kan.
199, 917 P. 2d
414 (1996) (attorney suspended for violations of 8.4[b], [d], and [g]); In re
Robertson, 256 Kan.
505, 886 P.2d 806 (1994) (attorney censured for violations of MRPC 8.4[b], [d], and [g]);
In re
Pyle, 283 Kan. ___, ___, 156 P.3d 1231 (2007) (Pyle II) (Supreme Court
found a violation of
KRPC 8.4[d]). The fact that the violations of the general misconduct rules have accompanied
violations of other rules in these cases was serendipitous, not preordained.

To support his other argument that the Disciplinary Administrator failed to meet the
burden of proof on violation of Rule 8.4(d), Respondent directs us to Gentile v. State Bar
of
Nevada, 501 U.S. 1030, 115 L. Ed. 2d 888, 111 S. Ct. 2720 (1991), and Standing
Committee on
Discipline of U.S. Dist. Court for Cent. Dist. of California v. Yagman, 55 F.3d 1430 (9th
Cir.
1995). He believes these cases dictate that the Disciplinary Administrator affirmatively show a
"clear and present danger" or "substantial likelihood of material prejudice to an adjudicative
proceeding" to prove Rule 8.4(d)'s "conduct that is prejudicial to the administration of justice."

These cases are readily distinguishable and otherwise unpersuasive.

Gentile concerned a rule of the Nevada Supreme Court prohibiting lawyers
from making
extrajudicial statements to the press that the lawyer knew or reasonably should have known
would have a "substantial likelihood of materially prejudicing" an adjudicative proceeding. 501
U.S. at 1030-31. The Kansas rule at issue here does not contain this standard. Compare KRPC
8.2(a).

In Yagman, California Local Rule 2.5.2 enjoined an attorney from engaging
in any
conduct that "degrades or impugns the integrity of the Court," and provided that "[n]o attorney
shall engage in any conduct which . . . interferes with the administration of justice." 55 F.3d at
1436. The Ninth Circuit Court of Appeals noted that speech otherwise entitled to full
constitutional protection may nonetheless be sanctioned if it obstructs or prejudices the
administration of justice, but that "[p]ress statements relating to judicial matters may not be
restricted . . . unless they pose a 'clear and present danger' to the administration of justice."
Yagman, 55 F.3d at 1442. The Yagman holding has been rejected by
other jurisdictions. See
Matter of Palmisano, 70 F.3d 483, 487 (7th Cir. 1995) (Yagman
inconsistent with United States
Supreme Court and Seventh Circuit precedent); In re Wisehart, 281 App. Div. 2d 23,
31, 721
N.Y.S.2d 356 (2001) (rejecting Yagman; attorney's false, scandalous attacks not
protected under
First Amendment); In re Shearin, 765 A.2d 930, 938 (Del. 2000)
(Yagman inconsistent with
Delaware court's holdings on lawyer speech). And we have not previously applied this standard
to evaluate an alleged KRPC 8.4(d) violation. See, e.g., In re Wiles, 283
Kan. 173, 179, 150 P.3d
859 (2007) (engaged in conduct prejudicial to administration of justice when failed to comply
with discovery requests and to respond to motions); In re Lazzo, 283 Kan. 167,
169-70, 150 P.3d
887 (2007) (engaged in conduct prejudicial to administration of justice by filing client's petition
for name change without disclosing client's criminal conviction; name change designed to elude
Colorado authorities); In re Brunton, 282 Kan. 423, 426, 144 P.3d 606 (2006)
(engaged in
conduct prejudicial to administration of justice by failing to amend bankruptcy plan that
improperly sought discharge of client's restitution obligation).

The Deputy Disciplinary Administrator met the correct burden of proof
to show
"prejudice to the administration of justice" when she introduced uncontested evidence that
Respondent's letters interfered with Blosser's open records request and that Respondent's threat of
disciplinary action and widespread accusations of Swenson forced him to drop his request and
his representation of Blosser. In fact, the Deputy Disciplinary Administrator showed actual harm
to Swenson, putting on evidence that he lost clients after the content of the letters became known.
The hearing panel's conclusion that Respondent violated KRPC 8.4(d) is amply supported by the
evidence in the record.

Constitutionality of KRPC 4.4 and 8.4(d) As Applied

Respondent also argues that, under the facts of this case, the two rules he is charged with
violating are unconstitutionally vague and overbroad, the second infirmity arising because the
rules infringe upon the lawful exercise of his rights under the First Amendment to the United
States Constitution and § 11 of the Kansas Bill of Rights.

We analyze the constitutionality of rules promulgated by this court in the same fashion
that we analyze statutes passed by the legislature. Generally, the question of whether a statute is
constitutional is a question of law over which an appellate court has unlimited review. The
constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and
before the act may be struck down, it must clearly appear that it violates the constitution. In
determining constitutionality, it is a court's duty to uphold a statute under attack rather than
defeat it. If there is any reasonable way to construe the statute as constitutionally valid, unless its
infringement of the superior law is clear beyond reasonable doubt, it should be upheld. City
of
Wichita v. Hackett, 275 Kan. 848, 853, 69 P.3d 621 (2003); State v.
Whitesell, 270 Kan. 259, Syl.
¶ 1, 13 P.3d 887 (2000).

Vagueness

We use a two-part test to determine whether a statute is unconstitutionally vague. First,
we consider whether the statute conveys a sufficiently definite warning of the proscribed conduct
when measured by common understanding and practice. Next, we consider whether the statute
adequately guards against arbitrary and discriminatory enforcement. The second part of the test
embodies the requirement that a legislature establish minimal guidelines to govern law
enforcement. State v. Rupnick, 280 Kan. 720, 737, 125 P.3d 541 (2005). We are
interested in
whether the language of the provision conveys a sufficiently definite warning as to the conduct
proscribed when measured by common understanding and practice. A statute that either requires
or forbids the doing of an act in terms so vague that persons of common intelligence must
necessarily guess at its meaning and differ as to its application is violative of due process.
State v.
Rose, 234 Kan. 1044, 1045-46, 677 P.2d 1011 (1984); State v. Lackey, 232
Kan. 478, 479, 657
P.2d 40 (1983); State v. Carpenter, 231 Kan. 235, 237, 642 P.2d 998 (1982);
State v. Huffman,
228 Kan. 186, 192, 612 P.2d 630 (1980); State v. Norris, 226 Kan. 90, 91-92, 595
P.2d 1110
(1979); Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 663, 562 P.2d 65
(1977). A
statute is not invalid for vagueness or uncertainty where it uses words of commonly understood
meaning. State v. Rose, 234 Kan. at 1046; In re Brooks, 228 Kan. 541,
544, 618 P.2d 814 (1980);
Kansas City Millwright, 221 Kan. at 663. At its heart, the test for vagueness is a
common-sense
determination of fundamental fairness. Hearn v. City of Overland Park, 244 Kan.
638, 642, 772
P.2d 758 (1989).

With regard to KRPC 4.4, Respondent argues that the words "embarrass," "delay," and
"burden" have no settled usage, and thus the rule "fails to provide fair notice to those to whom it
is directed of the prohibited activity and is so imprecise that discriminatory enforcement is a real
possibility."

Moreover, when appropriate emphasis is put on KRPC 4.4's use of the word "means," the
language gives fair warning that the reasonableness of a lawyer's choice of method to reach an
end is at the heart of any analysis. Again, Respondent's publication of the February 18 letter was
the problem here, not merely its content.

With regard to KRPC 8.4(d), Respondent argues that "like other rules," it "is a simplistic
standard that warns nobody of what hidden layer of discipline awaits them."

We have previously rejected the claim that the language of KRPC 8.4(d) sets up a "vague
and loose standard." See In re Anderson, 247 Kan. 208, 212, 795 P.2d 64 (1990),
cert. denied
498 U.S. 1095 (1991); State v. Nelson, 210 Kan. 637, 640, 504 P.2d 211 (1972). In
these earlier
cases, respondents advanced the same vagueness argument with regard to identical language in
MPRC 8.4(d) and DR 1-102(A)(5). We said:

"The word 'prejudicial' is universally found throughout the legal and judicial system.
Specific
definitions are found in any dictionary. In Prunty v. Light Co., 83 Kan. 541, 108 Pac.
802 (1910),
this court, referring to Webster's Universal Dictionary, defined prejudicial as 'hurtful,' 'injurious,'
'disadvantageous.' It cannot be seriously contended that 'prejudicial' does not sufficiently define
the degree of conduct which is expected of an attorney." Nelson, 210 Kan. at
639-640.

In light of the foregoing discussion, we reject Respondent's vagueness challenge to KRPC
4.4 and KRPC 8.4(d).

Overbreadth and Free Speech

"'While a vague statute leaves persons of common intelligence to guess at its meaning, an
overbroad statute makes conduct punishable which under some circumstances is constitutionally
protected.' [Citations omitted.]" State v. Whitesell, 270 Kan. at 270 (quoting
State ex rel. Murray
v. Palmgren, 231 Kan. 524, 533, 646 P.2d 1091 [1982]). Respondent argues that
enforcement of
KRPC 4.4 and KRPC 8.4(d) in this case demonstrates the overbreadth of the rules, because it
violates his rights under the First Amendment to the United States Constitution and like
freedoms protected by § 11 of the Kansas Constitution's Bill of Rights.

The First Amendment states that Congress shall make no law abridging the freedom of
speech. Section 11 of the Kansas Constitution Bill of Rights states each person may freely speak,
write, or publish their sentiment on all subjects, "being responsible for the abuse of such rights."

We first observe that, by their express language, KRPC 4.4. and KRPC 8.4 regulate
conduct, not speech. Further, respondent's conduct in sending the February 18 and follow-up
letter did not qualify as symbolic speech, such as the wearing of a black armband or a sit-in or
picketing. See, e.g., Tinker v. Des Moines School Dist., 393 U.S. 503,
21 L. Ed. 2d 731, 89 S. Ct.
733 (1969) (wearing black arm bands); Brown v. Louisiana, 383 U.S. 131, 15 L. Ed.
2d 637, 86
S. Ct. 719 (1966) (participating in silent sit-in); Thornhill v. Alabama, 310 U.S. 88,
84 L. Ed.
1093, 60 S. Ct. 736 (1940) (peaceful picketing). We realize, however, that in this case, our
discipline of Respondent for publication of his February 18 letter is tied to and in part dependent
upon the letter's content. If the letter's statements about Swenson had been flattering or neutral,
Respondent's choice to publish the letter could not have embarrassed Swenson and probably
would not have prejudiced the administration of justice. We acknowledge this content link and
appreciate that regulation of the content of that speech must be carefully drawn and fairly
enforced.

Still, both the United States Supreme Court and this court have previously recognized that
the freedom of speech is not inevitably without limitation. Lawyers, in particular, trade certain
aspects of their free speech rights for their licenses to practice. See Snyder, 472 U.S.
634, 643, 86
L. Ed. 2d 504, 105 S. Ct. 2874 (1985); Pyle II, 283 Kan. at __, 156 P.3d at
1243; In reJohnson,
240 Kan. 334, 335, 729 P.2d 1175 (1986).

In reJohnson was a contested disciplinary case in which we
sanctioned respondent for
false and unsupported criticism of and misleading statements about his opponent in a county
attorney election campaign. We stated:

"A lawyer, as a citizen, has a right to criticize a judge or other adjudicatory officer
publicly. To exercise this right, the lawyer must be certain of the merit of the complaint, use
appropriate language, and avoid petty criticisms. Unrestrained and intemperate statements against
a judge or adjudicatory officer lessen public confidence in our legal system. Criticisms motivated
by reasons other than a desire to improve the legal system are not justified." In re
Johnson, 240
Kan. at 336.

A lawyer also cannot insulate himself or herself from discipline by characterizing
questionable statements as opinions. See Pyle II, 283 Kan. at __, 156 P.3d at 1242;
Johnson, 240
Kan. at 339.

"Upon admission to the bar of this state, attorneys assume certain duties as
officers of the
court. Among the duties imposed upon attorneys is the duty to maintain the respect due to the
courts of justice and to judicial officers. A lawyer is bound by the Code of Professional
Responsibility in every capacity in which the lawyer acts, whether he is acting as an attorney or
not, and is subject to discipline even when involved in nonlegal matters, including campaigns for
nonjudicial public office. State v. Russell, 227 Kan. 897, 610 P.2d 1122, cert.
denied 449 U.S.
983 (1980)." In re Johnson, 240 Kan. at 337.

In In re Landrith, 280 Kan. 619, 124 P.3d 467 (2005), we rejected the
argument that the
First Amendment protected a lawyer's repeated baseless, inflammatory, and false accusations
against opposing counsel, judges, state district court employees, Court of Appeals staff, and
municipal officers and employees. 280 Kan. at 631-34, 638-39, 644. We reiterated our previous
holding that, in those instances where a lawyer's unbridled speech amounts to misconduct that
threatens a significant state interest, the state may restrict the lawyer's exercise of personal rights
guaranteed by the federal and state constitutions. See N.A.A.C.P. v. Button, 371 U.S.
415, 438, 9
L. Ed. 2d 405, 83 S. Ct. 328 (1963).

Most recently, in Pyle II, 283 Kan. at ___, 156 P.3d 1231, we navigated the
tension
between First Amendment freedoms enjoyed by all citizens and the limits that can be placed on
the exercise of those freedoms when a person chooses to become a Kansas lawyer. In that case,
an attorney reacted to his published censure in an earlier disciplinary case by publishing a letter
to 281 clients, friends, and family members, in which he again took issue with whether he had
violated any rules and whether he was deserving of any punishment; portrayed members of the
Board of Discipline as lackeys for the insurance industry and susceptible to improper influence;
indicated that the hearing panel had erred in its report; communicated that he disagreed with the
panel's findings, which had been accepted by this court; explained his animosity toward the
insurance industry and theorized that the particular insurance company involved in the litigation
underlying his discipline had brought pressure to bear on the Disciplinary Administrator, the
Disciplinary Board, and/or this court to make sure he was punished for his legitimate advocacy;
and, finally, minimized the significance of his published censure as a "public 'slap on the wrist'"
with no effect on his practice.

We imposed a 3-month suspension based on a violation of KRPC 8.4(d), holding that the
"administration of justice" Rule 8.4(d) sought to protect from prejudice was much broader than
the administration of justice to be effected in any single trial or adjudicatory proceeding and that
it could be violated by conduct unbecoming an officer of the court, even if a particular legal
proceeding had ended and even if the lawyer stopped somewhere short of spreading outright lies.
Pyle II, 283 Kan. at ___, 156 P.3d at 1247-48; see also Michigan Grievance
Administrator v.
Fieger, 476 Mich. 231, 719 N.W.2d 123 (2006), cert. denied, 127 S. Ct. 1257
(2007) (attorney's
comments violated disciplinary rule prohibiting undignified, discourteous conduct toward
tribunal, rule requiring respect toward all persons involved in legal process; rules not
unconstitutionally vague or overbroad).

In his discussion of overbreadth, Respondent cites three cases in which an attorney wrote
something and was sanctioned, and then the sanction was reversed by an appellate court: In
re
Snyder, 472 U.S. at 647; United States v. Wunsch, 84 F.3d 1110, 1120 (9th
Cir. 1996); In re
Finkelstein, 901 F.2d 1560, 1565 (11th Cir. 1990). Each of these cases is readily
distinguishable.

In Snyder, an attorney had declined to submit further documentation in
support of a
request for attorney fees under the Criminal Justice Act; refused to accept further assignments
under the Act; and criticized the administration of the Act. The Eighth Circuit Court of Appeals
suspended him from practice in all courts of the Eighth Circuit for 6 months for disrespect. The
United States Supreme Court reversed, holding: (1) The attorney's refusal to submit further
documentation in support of the fees request, while it could form the basis for declining to award
a fee, did not support the suspension from practice; (2) criticism of administration of the
Criminal Justice Act and of inequities in assignments under the Act was not cause for discipline
or suspension; and (3) even if a letter written by the attorney exhibited an "unlawyer-like
rudeness," this single incident of rudeness or lack of professional courtesy was not
"contemptuous or contumacious conduct" and would not support a finding that the attorney was
unfit to practice in federal courts; nor did it rise to a level of conduct unbecoming a member of
the bar. 472 U.S. at 646-67. Because Snyder was under no affirmative obligation to petition for
compensation or to accept appointments under the Act, he had violated no professional duty. In
contrast, Respondent in this case was under an affirmative obligation to conform his conduct to
KRPC 4.4 and KRPC 8.4(d). He had a duty to know and adhere to their requirements.

In Wunsch, an attorney was charged with, inter alia, interfering
with the administration of
justice, and displaying an "offensive personality" when, after his disqualification in a criminal tax
prosecution, he sent a sexist letter to an assistant United States attorney criticizing advocacy of
that disqualification. The Ninth Circuit Court of Appeals reversed the sanction, holding that (1)
the attorney's letter, while "deplorable," did not clearly interfere with the administration of justice
because it was a "single incident involving an isolated expression of a privately communicated
bias" that was outside the context of and had no adverse effect on any ongoing case; and (2) the
California statute requiring all attorneys to "abstain from all offensive personality" was
unconstitutionally vague. 84 F.3d at 1117-18. In this case, Respondent's conduct was not private
but public and had a direct impact on the KORA request procedure and efficacy. In addition,
KRPC 4.4 and KRPC 8.4(d) bear little likeness to the "offensive personality" rule.

In Finkelstein, an attorney for civil rights plaintiffs wrote a letter to the
general counsel
for the defendant, bypassing defendant's trial counsel. The letter contained certain objectionable
suggestions for settlement and coercive language. Under its "inherent power," and based on an
unwritten, "transcendental" code of ethics, the federal district court suspended the lawyer from
practice. 901 F.2d at 1565. The Eleventh Circuit reversed, concluding: there was no recognized
standard under which the federal court could impose this discipline; the subjective opinion of the
court was the sole basis for the sanction; and the attorney was not on notice that such discipline
could arise from his actions. 901 F.2d at 1565. In this case, Respondent was well aware or should
have been well aware that a violation of the rules could result in discipline.

Respondent's last constitutional argument is that the statements in his letter qualified as
"political" speech entitled to the highest level of constitutional protection. The record offers him
no support. According to Respondent's own testimony at the panel hearing, his conduct was
designed only to achieve a particular outcome for a unique, private client. It was not designed to
effect political change or accomplish any related end. It had zero "political" import, as that term
is understood in constitutional jurisprudence. See, e.g., Buckley v.
Valeo, 424 U.S. 1, 14, 46 L.
Ed. 2d 659, 96 S. Ct. 612 (1976); Roth v. United States, 354 U.S. 476, 484, 1 L. Ed.
2d 1498, 77
S. Ct. 1304 (1957).

We conclude that, to the extent the application of KRPC 4.4 and 8.4(d) in this case placed
restrictions on Respondent's speech, they were not overbroad and did not violate either the First
Amendment § 11 of the Kansas Bill of Rights. A lawyer's right to free speech is tempered
by his
or her obligation to both the courts and the bar, an obligation ordinary citizens do not undertake.
Nelson, 210 Kan. at 640; see Gentile, 501 U.S. at 1071; In re
Sawyer, 360 U.S. 622, 3 L. Ed. 2d
1473, 79 S. Ct. 1376 (1959); State ex rel. Nebraska State Bar Assn. v. Michaelis,
210 Neb. 545,
556-58, 316 N.W.2d 46 (1982) ("A lawyer belongs to a profession with inherited standards of
propriety and honor, which experience has shown necessary in a calling dedicated to the
accomplishment of justice . . . . A layman may, perhaps, pursue his theories of free speech or
political activities until he runs afoul of the penalties of libel or slander, or into some infraction
of our statutory law. A member of the bar can, and will, be stopped at the point where he
infringes our Canons of Ethics; and if he wishes to remain a member of the bar he will conduct
himself in accordance therewith.").

KRPC 8.3

The Disciplinary Administrator also challenges the panel's final hearing report in one
respect, arguing its dismissal of the claim regarding violation of KRPC 8.3 (2006 Kan. Ct. R.
Annot. 509) was error.

KRPC 8.3(a) states: "A lawyer having knowledge of any action, inaction, or conduct
which in his or her opinion constitutes misconduct of an attorney under these rules shall inform
the appropriate professional authority."

The Disciplinary Administrator argues Respondent violated KRPC 8.3 when he published
the February 18 letter–alleging Swenson had engaged in an ethical
violation–without
simultaneously reporting Swenson to the Disciplinary Administrator. Respondent insists his
eventual reporting of Swenson was sufficient compliance with KRPC 8.3, which sets out no time
limit. The hearing panel agreed with Respondent's reading of the rule.

We are unwilling to use this case as a vehicle to impose a time limit for reporting lawyer
misconduct to the Disciplinary Administrator. Unlike the Respondent in In re
Pyle,278 Kan. 230
(Pyle I), this Respondent ultimately complied with KRPC 8.3.

We also acknowledge the Disciplinary Administrator's argument that, by threatening
disciplinary action to achieve a result desired by his client, Respondent also violated KRPC 8.3.
A lawyer may not employ such a threat to obtain a legal advantage for his or her client; we have
specifically disapproved of such extortion attempts. We associate them with KRPC 4.4 rather
than with KRPC 8.3. We have already ruled that Respondent violated KRPC 4.4 and therefore
engage in no further discussion of this point.

Sanction

Respondent argues the Disciplinary Administrator's office did not specify the ABA
Standards upon which we should rely for the recommended discipline of public censure. He also
takes exception to the panel's application of aggravating and mitigating factors.

The record reveals that the Disciplinary Administrator referenced Standard 7.0, and
specified Standard 7.3 as the basis for its discipline recommendation. Respondent countered that,
if a violation was found, Standard 7.4 on admonition was more appropriate. The panel noted that
it had reviewed the ABA Standards and that none fit Respondent's situation precisely.

Neither this court nor the hearing panel is required, in an attorney disciplinary proceeding,
to cite and discuss every potentially applicable ABA Standard. The ABA Standards serve only as
guidelines to assist courts in selecting appropriate and uniform discipline, depending upon the
facts and the aggravating and mitigating factors present in each case. In re Ware, 279
Kan. 884,
892-93, 112 P.3d 155 (2005).

We conclude the Disciplinary Administrator's recommended discipline is within the ABA
guidelines and is consistent with this court's precedent. In re Lober, 276 Kan. 633,
640, 78 P.3d
442 (2003). We therefore adopt the recommendation of public censure as the appropriate
discipline under the facts herein.

IT IS THEREFORE ORDERED that C. Richard Comfort be and is hereby censured in
accordance with Supreme Court Rule 203(a)(3) (2006 Kan. Ct. R. Annot. 243).

IT IS FURTHER ORDERED that this opinion be published in the Kansas Reports and
that the costs of these proceedings be assessed to Respondent.

NUSS, J., not participating.

MARQUARDT, J., assigned.1

1REPORTER'S NOTE: Judge Christel E. Marquardt, of the
Kansas Court of Appeals, was
appointed to hear case No. 97,287 vice Justice Nuss pursuant to the authority vested in the
Supreme Court by K.S.A. 20-3002(c).